Mens rea and actus reus, and how to stop reading minds

One of the first concepts students learn in criminal law is about actus reus and mens rea. Actus reus is the physical action of the crime. For example, in a murder, the actus reus is the act of killing another person. Mens rea is the mental state of the accused. For example, murder requires the mens rea of prior intent to kill, whereas manslaughter requires no such mens rea. Two people could act with the same actus reus but be found guilty of two different crimes because they have different mens rea.

It’s really hard to prove that someone has the necessary mens rea for a crime. It’s really hard to know what someone else is thinking. You could get them to confess to their intent after the act. You could get a diary entry, or other statement from before the act. But it’s hard. This is why it’s tricky to prove murder beyond a reasonable doubt, because it’s hard to know what someone is thinking.

But the concepts of actus reus and mens rea doesn’t just apply in criminal law. They apply in ordinary life. It’s really hard for me to know someone else’s intent. I’m not a mind reader. I can’t know what the other person is thinking. I can guess, but it’s just a guess. The only way to know what someone is thinking is to ask them, and even then, they might not be telling the truth.

So when I relate to people, I ask myself two questions: (1) what is the actus reus I observe? (2) what are the possible mens rea that they may have? If someone ignores me, I can observe (1) they are ignoring me, and (2) it’s possible they don’t like me. But maybe they didn’t see me. Maybe they’re having a bad day. Maybe they just need some alone time. I then focus on the actus reus and how I will choose to respond, rather than the mens rea (which I really have no way of knowing).

This is why I don’t like it when people start ascribing intent to others. “You said X, but the real reason is because Y. The real reason you’re doing this is because you’re a racist. The real reason you said that is because you’re a bigot. The real reason you act this way is because you hate Christians.” It seems like folks are saying, “You claim X, but I know you. I know the secret things that you believe. What is really going on is Y.” Folks are claiming that they know the other person’s mens rea. Folks are claiming to be mind readers.

One phrase I learned from my counseling class is “What I’m making up about this is…” I can’t read another person’s mind, so when I claim to know another person’s intent, it’s really my own imagination. “What I’m making up about this is that you’re doing this because you’re a racist. What I’m making up about this is that you said that because you’re a bigot. What I’m making up about this is that you act this way because you hate Christians.” Maybe my imagination is correct. But I really have no way of knowing until you tell me what you’re thinking.

I find that it’s not productive to try to guess another person’s mens rea. I will ask them what they are thinking. If I can’t, I will focus on the actus reus and how I will choose to respond to it. “I don’t know if you intended to hurt me or not. What I observed was that you ignored me, and I felt hurt by that.”

So maybe it would be like this: “I am offended by your action because it bolsters the view that one race is superior to another. I am concerned by your comment because it has the effect of strengthening hateful speech. I am grieved because your activity communicates to me an animosity toward Christians.”

In short, I try to focus on responding to the actus reus that I can observe, and try not to worry about the mens rea that I cannot. I try to not read minds, because I’m not very good at that.